Appeal No. EAT/1269/01/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 January 2003
Judgment delivered on 21 February 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MR D J HODGKINS CB
THE HONOURABLE DR WILLIAM MORRIS OJ

MS E VICTOR-DAVIS	APPELLANT

LONDON BOROUGH OF HACKNEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS CATHERINE RAYNER
(of Counsel)
Instructed By:
Messrs Russell Jones & Walker
Solicitors
4th Floor
Brazennose House West
Brazennose Street
Manchester M2 5AZ	
For the Respondent	MR STEPHEN HEATH
(of Counsel)
Instructed By:
Hackney Legal Services
298 Mare Street
Hackney
London E8 1HE	

HIS HONOUR JUDGE J McMULLEN QC:

INTRODUCTION
1	This case is about sex and race discrimination and victimisation.  We will continue to refer to the parties as Applicant and the Respondent.

2	It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal, sitting at Stratford, Chairman Mr I F Pritchard Witts, promulgated with Extended Reasons on 11 September 2001.  The Employment Tribunal sat for 8 days including 2 in chambers considering written submissions and its decision.  The parties were represented by counsel appearing today.

3	The Applicant made claims in 3 Originating Applications alleging sex discrimination, victimisation, race discrimination and victimisation.

4	The Respondent denied all allegations.

The issues
5	The essential issues were defined by the Employment Tribunal on the first day following a schedule of agreement of Counsel.  There are 13, involving 34 separate claims. 

The Employment Tribunal Decision
6	The Employment Tribunal dismissed all but one of the complaints in a 30 page Decision.  And that complaint was dismissed because it was out of time.

The grounds of appeal
7	The Applicant appealed against that finding on 47 separate grounds as set out in a Notice of Appeal drafted by Counsel adumbrated in a 27 page skeleton argument and oral submissions. These might be summarised as being that the Employment Tribunal erred in its application of Race Relations Act 1976 sections 32 (agency) and 68 (discretion to extend time); did not give adequate reasons; made perverse decisions on the issues; failed to draw inferences; wrongly preferred the evidence of the Respondent (accepted to be a conclusion of fact open to it) without proper reasoning; made errors of fact in relation to the protected act for the purpose of a victimisation claim, failed to apply King v Great Britain China Centre 1991 IRLR 513 and Glasgow v Zafar 1998 IRLR 36; erred in failing to find Applicant was discriminated against in relation to her complaint of race discrimination and her claim for early retirement. 

EAT Directions
8	Directions were given in this appeal at a Preliminary Hearing by Maurice Kay J and members on 27 November 2001 for three grounds of the Notice of Appeal to go forward, and one to be examined at a hearing for directions after the Chairman’s notes of certain evidence had been obtained.  The notes were forthcoming.  The further directions hearing was dispensed with.  The issues identified by the EAT and now refined by Ms Rayner are:

(a) that the Respondent was not liable for the actions of Ms Ware under the Race Relations Act 1976 s 33(2) (the agency point).  This is now conceded, but the Respondent still takes a time point on it;

(b) that there was no basis for extending time to give the Applicant a remedy in respect of the acts of Mr Applequist;

(c) that the Respondent did not discriminate against the Applicant by failing to deal with her complaint of race discrimination;

(d) that the Respondent did not victimise the Applicant by failing to process her claim for early retirement.
Facts
9	Eugenia Victor-Davis is a social worker of Afro-Caribbean origin. From 1985 she was employed by the London Borough of Hackney.  In May 1994 the Respondent formed the north-west locality mental health team to which the Applicant was assigned.  While a member of that team she encountered difficulties in her dealings with certain of her colleagues:  Rab McNeil, who was initially her team manager; John Applequist, a social worker in the same team; Jo Ware, who replaced Mr McNeil as team manager in June 1997; and Dr Mark Salter, a consultant psychiatrist.  Ms Ware and Dr Salter were not employed by the Respondent but were members of the north-west locality mental health team supplied by the local NHS Trust.

10	After Mr Applequist had made a complaint about the Applicant, Ms Ware decided in February 1998 to suspend her from her duties and appointed Mr Applequist as investigating officer.  The Respondent later appointed Mrs Sandra Howard, Service Head for mental health, to conduct a disciplinary hearing.  In August 1998, following a hearing conducted together with Mr Plummer, a Human Resources Adviser, Mrs Howard dismissed as unsustainable the allegations of gross misconduct levelled against the Applicant.  She found that in relation to three clients the Applicant had misconducted herself in respect of “professional competence and decision-making and some inflexibility”.  She favoured monitoring of the Applicant in another locality.  Mrs Howard made criticisms of Mr Applequist and Ms Ware.  Mr Applequist was reprimanded and Ms Ware was suspended by the NHS Trust.  The Applicant gave notice of appeal against Mrs Howard’s decision but was advised that she was not entitled to appeal since no penalty had been imposed on her.

11	From 1 October 1998 the Applicant was absent from work for reasons of sickness.  In January 1999 she wrote to the locality manager, Mr Glass, requesting early retirement.  Mr Glass indicated that early retirement with maximum enhancement of years of service for pension purposes was not available save where a post is deleted.  This did not apply in her case.  It appears however in 1997 some other employees of the Respondent had been permitted to retire early, with maximum enhancement, in the absence of the deletion of their posts.  

12	In April 1999 one of the Respondent’s managers, Mrs Corder, wrote to the Applicant’s representative stating that as a post had not been deleted, early retirement with added years could not be considered; but in view of the Applicant’s position and the history of her treatment she could have early retirement without added years. 

13	In May 1999 the Applicant wrote to the Respondent’s acting Chief Executive, Mr S Ebanja, complaining of the position then adopted by the Respondent in respect of her pension entitlements on taking early retirement.  She claimed that her suspension had been motivated by racial discrimination; that she had been wrongly denied a right to appeal against Mrs Howard’s decision; and that she had been improperly treated by Mr Applequist and by Mr Julian Wilson, who had been since September 1998 her line manager.

14	The Respondent appointed its Director of Environmental Services, Robert Biggs, to investigate the Applicant’s complaints.  In March 2000 Mr Biggs concluded that Mrs Corder had been correct in the position that she had taken in respect of early retirement.  He upheld the conclusion that the Applicant was not entitled to appeal against the decision of Mrs Howard.  He expressed criticism of Mr Applequist and Ms Ware, both of whom he considered to have been unwittingly racist.  Nevertheless, he concluded that the Applicant was not entitled to early retirement with added years; and he was not prepared to exercise his discretion in her favour.

15	On 30 March 2000 the Applicant ceased receiving sick pay in accordance with her contractual terms of service.

16	By an Originating Application dated 26 June 2000, subsequently supplemented and amended, the Applicant complained to the Tribunal of “unlawful discrimination and/or victimisation contrary to the Race Relations Act 1976 and/or the Sex Discrimination Act 1975”.  She was treated less favourably on grounds of her race and sex, or was victimised, by Rab McNeil, Jo Ware, John Applequist, Sandra Howard and Robert Biggs.  She alleged:

(a) that Rab McNeil, a white male, dealt less favourably with the complaints she made to him in February and May 1995 than with the complaints made in May 1995 by John Applequist, another white male;

(b) that Mr McNeil discriminated against her

(i) in June 1995 by withdrawing her supervisory responsibilities;

(ii) between July 1995 and August 1996 by failing to deal equally with the Applicant and with Dr Salter, a white male; 

(iii) in October 1996 when turning down her application to go on a family therapy course.
(c) that Jo Ware, who is white, discriminated against her by

(i) treating her in an aggressive manner between October 1997 and February 1998; 

(ii) threatening to discipline her in October 1997; 

(iii) failing to support her application to act as team leader while naming Mr Applequist as team leader in November 1997; 

(iv) refusing to provide her with back-up support in December 1997; 

(v) dealing less favourably with her complaints against John Applequist than with his complaints against her, in January and February 1998; and 

(vi) suspending her in February 1998. 

(d) further that in February 1998 Jo Ware victimised her by instituting disciplinary proceedings against her following the complaint that she had made against John Applequist.

17	She alleged that John Applequist failed to deal appropriately with her concerns about duty cover and was rude and aggressive to her whereas he would not have behaved in this way to a notional white male comparator; he treated her with less respect and support than white male staff; he bullied and harassed her about the Mental Health Act whereas he would not have behaved in this way to a notional white male comparator.  Further, in January 1998 he investigated her by trawling through her files and instituted disciplinary proceedings against her whereas he would not have behaved in this way to a notional white male comparator.

18	She alleged that Sandra Howard treated her between May and August 1998 less favourably than she would have treated a notional white male comparator by failing to follow the proper process for hearing matters of capability and competence; by allowing the disciplinary proceedings to continue, and suspension to remain, even after dismissing as unsustainable the allegations of gross misconduct that had been levelled against her; and by failing to deal with her complaints of racism, requests for an appeal or concerns about her return to work.  Further, she treated the Applicant less favourably than John Applequist by instituting action against the Applicant but not against him. 

19	She alleged that Mr Biggs, a white male, discriminated against her in the way in which he conducted his investigation and in the findings that he made.

20	She also alleged that the Respondent discriminated against her in failing to deal appropriately with her claim for early retirement and failing to treat her equally with David Brooks (a white male) and Bonnie Miller (a white female) who received enhancement of pension by “added years” on their early retirement.  Further she alleged that the Respondent treated her complaints of discrimination less favourably than they would have done had she been a white male; and failed to treat her equally with John Applequist when she enquired about transfer to a medium secure unit in 1997.  She claimed that the Respondent victimised her in moving her from her post, following the complaints she made against Mr Applequist and Ms Ware and failed to process her claim for early retirement on enhanced terms following her complaint to the Tribunal.  She claimed that the acts of discrimination by the Respondent formed a continuous course of action up to the publication of Mr Biggs’ report.

The Employment Tribunal Decision
21	The Tribunal concluded that there was no sound basis for concluding that Mr McNeil had discriminated against the Applicant on grounds of race or sex.  It found Mr McNeil to be an impressive witness and where his recollection was at odds with that of the Applicant, it preferred his evidence.

22	In the case of Jo Ware, the Tribunal concluded that “over a period of time Ms Ware subjected [the Applicant] to a degree of unreasonable treatment”.  There was evidence of a difference in treatment of the Applicant, by Ms Ware, and no evidence before the Tribunal as to why Ms Ware treated the Applicant less favourably than others of different race or gender.  (Ms Ware was not called as a witness before the Tribunal).  Since, however, Ms Ware was not an employee of the Respondent, and the latter took appropriate steps to deal with the situation once it formed the view that she had behaved inappropriately, no liability attached to the Respondent under the 1976 Act or the 1975 Act.

23	In the case of John Applequist, the Tribunal concluded that the Applicant’s complaints were well-founded.  He had treated the Applicant less favourably; and as there was a difference of race and sex the Tribunal was prepared to infer, in the absence of any explanation from Mr Applequist (who was not called to give evidence) that he treated the Applicant less favourably because of her race and/or sex.  However, the events of which the Applicant complained occurred more than two years before the date of the Originating Application.  Bearing in mind that the Applicant had expressly declined to pursue an allegation of racial discrimination against Mr Applequist, when invited by Mrs Howard to do so, the Tribunal was not satisfied that it was right to extend the time in order to give the Applicant a remedy.

24	In the case of Mrs Howard, the Tribunal concluded that there was no evidence to indicate that she subjected the Applicant to less favourable treatment on ground of race or sex.  She was a particularly impressive witness and where her recollection was at odds with that of the Applicant, it preferred Mrs Howard’s evidence.

25	In the case of Robert Biggs, the Tribunal concluded that his evidence was in certain respects unsatisfactory but the Applicant had not discharged the burden of proving that there was sex or race discrimination.

26	The Tribunal dismissed on the evidence the remaining complaints made against the Respondent generally.

27	Pursuant to the Order of the Employment Appeal Tribunal dated 27 November 2001 the Applicant now appeals against three principal findings of the Tribunal.

The agency point
28	Section 32(2) of the 1986 Act provides:

“Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him”.

Section 41(2) of the 1975 Act is expressed in similar terms.

29	In her final submissions to the Employment Tribunal, counsel for the Applicant contended that:
“The Respondents had entered into an arrangement of joint working with the health authority, the effect of which was that Mrs Ware had control over the Applicant, the authority and the power to utilise the Respondent procedures [sic], and power and authority to oversee the exercise of the authorities functions, as carried out by the Applicant.  The Respondent do not deny that they had responsibility for the treatment the Applicant received from Mrs Ware in their Notice of Appearance.
The Respondent clearly had influence over the management and discipline of Mrs Ware, and whilst the Respondent could not initiate the process themselves, they were able to discuss the matter with the health authority, and appear to have expected that steps would be taken.
In these circumstances it is submitted that Mrs Ware was an agent of the Respondent within the meaning of section 32(2) RRA 1976, and they have responsibility for her actions.”

On appeal, counsel complains that the Tribunal made no mention of this submission in the decision; and submits that the inevitable consequence of considering the issue would be the conclusion that Ms Ware did the acts in question as agent for the Respondent.  

30	Although the Tribunal stated, in paragraph 26 of its decision, that “no liability can attach to the Respondents under the provisions for vicarious liability in respect of the 1975 or 1976 Acts” it did not consider whether, by reason of sections 32(2) and 41(2) of the 1976 Act and the 1975 Act respectively, a distinction is to be drawn between discriminatory acts done by a third party and discriminatory acts done by a person exercising the authority conferred on him or her as agent.  We do not criticise the Tribunal for the omission, since the argument on section 32(2) was advanced only in counsel’s final submissions and since the Tribunal had to distil a large number of submissions of fact and law from a “voluminous bundle”.  The fact remains that the point is an important one, in the circumstances of the present case.

31	The Respondent now concedes that the Employment Tribunal erred and accepts liability for Mrs Ware.  It does not advance the defence of taking reasonable steps to prevent her discriminating under s 33(3).  This is a proper concession for it to make.  We deal with the matter without the benefit of a contested argument, but we will say a few words as we recognise this is an important issue for many in the public service and in the private sector, where an employee may find herself supervised or managed by a person who is not in the same employment but is a contractor or outsource.  It is also important for the disposal of a remaining issue in the case.

32	In Lana v Positive Action Training in Housing Ltd, [2001] IRLR 501 at 504 the Employment Appeal Tribunal (Mr Recorder Langstaff, QC and members) considered the proper interpretation of section 41(2) of the 1975 Act.  It concluded that to construe that section in such a way as to impose liability on a principal only when it has authorised the agent to discriminate would impose an “almost impossible restriction” upon it.  The proper approach was to consider whether, when doing the discriminatory act, the discriminator was exercising authority conferred by the respondent. 

33	We agree with that construction, which must apply equally to section 32(2) of the 1976 Act.  We have to add however that a discriminatory act, done by a person without the knowledge or approval of a principal, cannot be deemed to have been done by that person as the principal’s agent and with his authority where the principal has taken such steps as are practicable to prevent the person from doing that act.  If it were otherwise, a principal would incur greater liability for acts of an agent than an employer incurs for acts of an employee.  This would be contrary to the scheme and purpose of the 1975 and 1976 Acts.

34	All of the complaints made by the Applicant against Ms Ware arise from her conduct as team manager.  While she occupied that role she exercised the same authority over the Applicant as had been exercised by Mr McNeil, one of the Respondent’s employees.  Accordingly in the light of the concession it is not necessary to determine whether the Respondent took such steps as were necessary to prevent Ms Ware from doing the acts of which the Applicant complains or to apply the doctrine in Burton and Rhule v De Vere Hotels, [1996] IRLR 596 and Pearce v Governing Body of Mayfield School, [2000] IRLR 548.  Those cases shed little light on the approach to be taken by a principal to guard against discrimination by an agent.  It is worth noting that the Tribunal concluded that the Respondent dealt effectively with Ms Ware following Mrs Howard’s report in July 1998.  By that date, however, the Applicant had already suffered discriminatory acts over a period of more than one year and had been suspended.

35	In the absence of a contrary submission on behalf of the Respondent, we are able to see how the Employment Tribunal would have approached the issue of race discrimination if it had correctly directed itself that the Respondent was liable for the acts of Jo Ware.  It is clear from the Tribunal’s findings that but for the misdirection and the time point, it would have found unlawful race discrimination by Ms Ware for which the Respondent was liable:  see its Decision paragraph 26. 

Extension of time
36	It then had to consider the time point in relation to that discrimination.  It would be logical to take the Employment Tribunal’s findings on the complaint against Mr Applequist and apply its approach to the law to the complaint against Ms Ware.  If so, we could ourselves decide that the decision made by the Employment Tribunal was unarguably correct despite the misdirection.  But as will become apparent when we deal below with the Applequist complaint, there is no express indication of whether the Employment Tribunal regarded the Ware complaints as “discrete”.  It certainly found that the Applicant’s representative said at Mrs Howard’s 1998 hearing that there was no issue of race discrimination in the Ware complaint, and that is demonstrated to be correct by reference to the Chairman’s notes.  Logically, then, it would apply the same approach to the time point.  But since there are now two officers of the Respondent who are found to have acted discriminatorily, it would be prudent for us to allow the Employment Tribunal to make its own decision on the extension of time.  We hold out no expectation to the Applicant that the result will be different.

37	The second ground of appeal is that the Tribunal erred in law or was perverse in concluding that there was no basis for extending time to give the Applicant a remedy in respect of the acts of Mr Applequist. Section 76 of the 1975 Act provides:

“(1) An employment tribunal shall not consider a complaint under section 63 [which includes acts which are unlawful under section 41] unless it is presented to the tribunal before the end of
(a) the period of three months beginning when the act complained of was done ...
(5) A court or tribunal may nevertheless consider any such complaint … which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

Section 68 of the 1976 Act is in similar terms.

38	Relying on British Coal Corporation v Keeble, [1997] IRLR 336 counsel submits that the Tribunal erred in failing to consider the whole picture including the facts that: 

(a) the Applicant’s complaint was of continuing acts of discrimination by several individuals;

(b) the Applicant was suspended for some six months;

(c) the Applicant raised allegations of race discrimination which were not dealt with;

(d) the Applicant was advised that she could not institute proceedings before exhausting an internal remedy; and

(e) the Applicant was of poor health.

In the course of its decision the Tribunal addressed all of these issues save the claim that the Applicant was advised that she could not institute proceedings before exhausting an internal remedy.  The Tribunal was however influenced by the fact that the Applicant had expressly declined to pursue an allegation of racial discrimination against Mr Applequist, when invited by Mrs Howard to do so, in the course of her enquiry.  In our judgment the Employment Tribunal had fully in mind and made express references to the claim that the discrimination was of a continuing nature and expressly rejected it:  see eg paragraph 34.  Nor does there appear to be an obligation to go through all the checklist in Keeble, as the Court of Appeal has indicated in Afolabi (below, although we did not hear argument on this and do not base our decision on it).  In any event there are sufficient findings related to the exercise of discretion to extend time for it to be clear what the Employment Tribunal was relying on when it refused to do so. 

39	The Applicant now challenges the Tribunal’s finding on that point; but it is confirmed by the Chairman’s notes, which record in part “I raised the matter of race. Mr Wilson the representative said that was not the issue”.  Since the Applicant was represented at all material times, was given an opportunity to raise the complaint of discrimination by Mr Applequist and declined to do so, and sought to raise the issue some two years after the event, we cannot conclude that the Tribunal was perverse in deciding that there was no basis for extending time to give the Applicant a remedy in respect of the acts of Mr Applequist.

Failure to deal with the Applicant’s complaints of discrimination
40	At paragraph 38 the Tribunal records that:

“The Applicant’s concerns of racism first appear in her appeal letter in response to a disciplinary hearing in which no issue of discrimination was ever raised”.

This appears to be a reference to the Applicant’s letter dated 21 May 1999 to Mr Ebanja, the acting chief executive, complaining that her suspension was motivated by race discrimination.  

41	Counsel contends that in making this finding the Tribunal acted perversely; for as the Tribunal itself recorded, complaints of racial discrimination had been made on behalf of the Applicant in a letter from her representative in February 1998 (to which Ms Ware responded in March 1998).  She contends that the Tribunal ought to have concluded that the Respondent did discriminate against the Applicant by failing to deal with her complaint of racial discrimination.

42	While we agree that paragraph 38 of the Tribunal’s decision is inappropriately expressed, we consider that the sense is tolerably clear when it is read in context.  At paragraphs 20(liii) and 26 the Tribunal records that the Applicant’s representative declined the invitation extended to him by Mrs Howard to argue that the disciplinary proceedings were instituted for racially discriminatory purposes.  Thus the finding was that although the issue of racial discrimination had been mooted in correspondence, it was not pursued in the disciplinary hearing, even in response to the invitation of its Chair.  It was then raised formally on 21 May 1999.

43	Counsel for the Applicant then submits that the Tribunal erred in failing to consider the Respondent’s actions in their entirety, as enjoined by the Court of Appeal in Anya v University of Oxford [2001] ICR 847.  We do not think that it failed to do so.  The Tribunal was presented with a large number of allegations.  It dealt with these systematically.  Inasmuch as the Court of Appeal counsels against a “fragmented” approach without also standing back to see the whole picture, we hold that the correct description of the Employment Tribunal’s reasoning in this case is analytic.  It is painstaking and clear.  It did not fail to consider the entirety of the acts of which the Applicant complains.  On the contrary it recorded in paragraph 34 that:

“There is no evidence before this Tribunal to satisfy it that the conduct of Mr Applequist was part and parcel of a continuing course of race discrimination or sex discrimination.”

Further, in paragraph 47 it looks back at its reasoning in respect of the claim that all the events constitute a continuing act and were thus in time.  That is looking at the whole picture.  It was entitled to do this at the end of the case, when it was better informed of the evidence:  Afolabi v Southwark LBC EWCA Civ 15 24 January 2003.  It is not clouded by the concession now that that the Respondent was liable for Ms Ware and the logical finding that she acted discriminatorily.

44	Counsel for the Applicant draws on both of the two preceding submissions when contending that complaints about racism were made by the Applicant, that Mrs Howard considered that there was potential racism involved but there was no investigation prior to the one by Mr Biggs.  The Tribunal’s finding was that the Applicant’s representative declined to pursue the argument that racial discrimination was involved, even when invited to do so by Mrs Howard.  It was only later that she made her complaint formally.  It was then investigated. 

45	The Tribunal gave its reasons for failing to accept the allegations of discrimination now made of Mrs Howard (who the Tribunal pointed out is herself a woman of Afro-Caribbean origin).  It concluded that there was no evidence that she treated the Applicant less favourably than she would have treated a notional white male comparator.  In its words:

“The Tribunal is of the view that, on the evidence and looking at Mrs Howard’s testimony as a whole, there are no grounds whatsoever for drawing the inference that she was discriminating against the Applicant on the grounds of her race and/or gender.”

It also concluded that Mrs Howard could not be said to have discriminated by instituting proceedings against the Applicant but not against Mr Applequist.  Mrs Howard took no formal action against the Applicant but put in place procedures for her benefit.  Although the Employment Tribunal says that it would not infer that Mrs Howard “was nevertheless prepared to act in a … discriminatory way towards the Applicant”, and might be focusing on a conscious decision, we are satisfied that in context of its extensive review of the evidence and the law, it was directing itself to conscious and unconscious discrimination, in the form of a number of discontinuous acts.  There is no basis on which we can disturb these findings.

Victimisation
46	Finally it is contended on behalf of the Applicant that the Tribunal applied the wrong test in determining whether the Applicant could establish that she had been victimised.  At paragraph 16 of its decision the Tribunal set out the two-stage test which it said was established by the House of Lords in Swiggs and Others v Nagarajan AP, 15th July 1999.  The first part of the test is to enquire whether the Applicant has suffered less favourable treatment than others.  The second part is to enquire whether the discriminator treated the Applicant less favourably by reason of the fact that she had made a relevant complaint or intended to do so.  That is in taken from the Court of Appeal judgment as is clear from the reference to the judgment of Peter Gibson LJ. The case in that court is reported at [1998] IRLR 73.  Part of that judgment was overturned Lord Browne-Wilkinson dissenting [1999] ICR 877 in speeches delivered on 15 July 1999.

Since then, and after the decision in the instant case the House of Lords has returned to this section in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48 [2001] IRLR 830 [2001] ICR 1065.	

47	In doing so it affirmed the test in Cornelius v University College of Swansea [1987] IRLR 141 CA.  Neither authority was cited by counsel so we gave both counsel an opportunity to make submissions on Khan.  It is now clear that the test is three-fold: see Lord Nicholls of Birkenhead at page 1071 and should be applied as follows:

(a) What are the relevant circumstances?  Here they are that an employee was subject to a delay in the handling of her application for early retirement

(b) Was there less favourable treatment than others in the control group?  These others are persons who so applied and were not held up by their case being referred to the Legal Department.

(c) Was the treatment by reason of the protected act.  As Lord Nicholls put it:  “The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise:  why did the alleged discriminator act as he did?  What, consciously or unconsciously, was his reason?  Unlike causation, this is a subjective test.  Causation is a legal conclusion.  The reason why a person acted as he did is a question of fact.”  So the Employment Tribunal in the instant case should have looked for a subjective reason.

48	Lord Nicholls went on to approve and apply the former case:

“A situation, closely comparable to that in the present case, arose in Cornelius v University College of Swansea [1987] IRLR 141.  This was a decision of the Court of Appeal, comprising Sir John Donaldson MR, and Fox and Bingham LJJ.  Like the present case, Cornelius concerned steps taken by employers to preserve their position pending the outcome of proceedings.  A college declined to act on an employee’s transfer request or to operate their grievance procedure while proceedings under the Sex Discrimination Act 1975, brought by the employee against the college, were still awaiting determination. Giving the only reasoned judgment, Bingham LJ said, at pp.145–146, paragraph 33: 
‘There is no reason whatever to suppose that the decisions of the registrar and his senior assistant on the applicant’s requests for a transfer and a hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act.  The existence of proceedings plainly did influence their decisions.  No doubt, like most experienced administrators, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings.  They accordingly wished to defer action until the proceedings were over.  But that had ... nothing whatever to do with the appellant’s conduct in bringing proceedings under the Act.  There is no reason to think that their decisions would have been different whoever had brought the proceedings or whatever their nature, if the subject-matter was allied.  If the appellant was victimised, it is not shown to have been because of her reliance on the Act’.”

Two strands are discernible in this passage. One strand is that the reason why the officers of the college did not act on the complainant’s two requests was the existence of the pending proceedings, as distinct from the complainant’s conduct in bringing the proceedings. They wished to defer action until the proceedings were over. The second strand is that the college decisions had nothing to do with the complainant’s conduct in bringing proceedings against the college under the 1975 Act. The decisions would have been the same, whatever the nature of the proceedings, if the subject-matter had been allied to the content of the employee’s requests.

49	Applying this to the facts, it was held that the second strand was correct. This was also cited and approved by Lord Hoffman who said at paragraphs 54, 59-60:

“54 Of course, in one sense the fact that he had brought proceedings was a cause of his being treated less favourably.  If he had not brought proceedings, he would have been given a reference.  In some contexts, a causal link of this kind will be enough.  For example, in R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173, the question was whether the council had treated a girl less favourably ‘on the ground of her sex’, contrary to s.1 of the Sex Discrimination Act 1975.  The House of Lords decided that her sex did not have to be the reason why the council had decided to treat her in that way.  It was sufficient that she would have been treated differently if she had been a boy:  see also James v Eastleigh Borough Council [1990] IRLR 288. … 
59 [Cornelius], with which I respectfully agree, shows that, once proceedings have been commenced, a new relationship is created between the parties.  They are not only employer and employee but also adversaries in litigation.  The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings.  But the treatment need not be, consciously or unconsciously, a response to the commencement of proceedings.  It may simply be a reasonable response to the need to protect the employer’s interests as a party to the litigation.  It is true that an employee who had not commenced proceedings would not have been treated in the same way.  Under s.1, one would have needed to go no further.  Under s.2, however, the commencement of proceedings must be a reason for the treatment and in Cornelius’s case it was not. 
60 A test which is likely in most cases to give the right answer is to ask whether the employer would have refused the request if the litigation had been concluded, whatever the outcome. If the answer is no, it will usually follow that the reason for refusal was the existence of the proceedings and not the fact that the employee had commenced them. On the other hand, if the fact that the employee had commenced proceedings under the Act was a real reason why he received less favourable treatment, it is no answer that the employer would have behaved in the same way to an employee who had done some non-protected act, such as commencing proceedings otherwise than under the Act.”
	
50	In paragraph 17 the Employment Tribunal applied the third test as being “was the treatment on racial and/or gender-related grounds?”.  This might just be correct as regards direct discrimination but is a misdirection for victimisation.  There is no requirement to consider whether the treatment was on racial grounds, but it must focus on whether the discriminator did something by reason that the person had done a protected act.  Further, we take it that gender related grounds is shorthand for “on the grounds that the person is a woman”, since the grounds are narrower for sex discrimination than race discrimination: there is no equivalent to “on racial grounds” and indeed it is not necessary to prove membership of any particular racial group in order to succeed in direct race discrimination. 

51	In paragraph 18 the Tribunal stated that once it is established that a person has suffered less favourable treatment than a person of another race or sex, “it is only common sense for the Tribunal to look to the Respondents for an explanation without shifting the burden of proof”.  It is that last statement to which the Applicant now objects.

In our view that objection is misplaced. Presented with the allegation that the Respondent had discriminated against the Applicant, on grounds of race or sex, or had victimised her, by failing to deal more promptly with her application for retirement on enhanced terms, the Tribunal looked to the Respondent for an account of the delay. It received from Mrs Howard the answer that the Respondent’s pension section was only staffed by one individual who was clearly overwhelmed with work. Tribunal’s conclusion was that:

“There is no evidence before the Tribunal that the Applicant was treated any differently, or would have been treated any differently, to anybody else”.

52	The evidence from the relevant officer was that advice was sought from Human Resources and the legal department “It appears now that she did not get it until 5 December 2000. Because I referred it to the legal department because of the complaint”. At first sight that is an acknowledgment that the delay was a direct consequence of the race discrimination claim, and so ought to found a victimisation claim. It would also found a direct race discrimination claim, as Lord Hoffman indicated, unless the reason for it was explained and free of race discrimination and of subjective consideration of the protected act. 

53	The approach that the Tribunal took to evidence on this point was indeed one of common sense.  Leaving aside the overwork of the pensions officer, it must be correct for a check to be made across the Council’s departments, so that the left hand knew what the right was doing in respect of their handling of the Applicant’s claims.  Although the Employment Tribunal misdirected itself on the correct test for victimisation, its conclusion is incontestably correct.  It is in no way inconsistent with the judgment of the Court of Appeal in Cornelius and of the House of Lords in Khan.  And its acceptance of the “graphic” explanation of delays in processing pensions means there was no direct race discrimination in the handling of the Applicant’s claim. 

Conclusion
54	For the reasons given above we have concluded that this case must be remitted to the Tribunal to determine whether the Applicant’s complaint about Ms Ware is within time, and if not whether to extend time.  To that extent only the appeal is allowed.  It is remitted to the same Employment Tribunal for a decision on that point only.